1920341 ALBERTA LTD v JONSSON, 2018 ABCA 231

slatter ja

1.4: Procedural orders
2.27: Retaining lawyer for limited purposes
4.22: Considerations for security for costs order
11.15: Service on person providing an address for service
14.5: Appeals only with permission

Case Summary

The Plaintiffs commenced an Action against the Defendants (the “1920341 Action”), claiming that an earlier Action issued by the Defendants against the Plaintiffs was an abuse of process (the “Jonsson Action”). The 1920341 Action was struck by a Master in Chambers for disclosing no cause of action. The Plaintiffs appealed the Master’s Decision.

The Appeal was adjourned, and counsel for the Plaintiffs subsequently withdrew as counsel and applied for a further adjournment so that the Plaintiff could retain new counsel. A Chambers Justice adjourned the Appeal for one month on the condition that the Plaintiffs post Security for Costs. The Plaintiffs failed to post Security for Costs and no Notice of Change of Representation was filed for the Plaintiffs. On March 23, 2018, a third Chambers Justice refused any further adjournments and struck the Appeal. The Plaintiffs applied for Leave to Appeal the Order relating to posting Security for Costs, and the Order striking the Appeal.

Justice Slatter noted that a limited retainer is permitted by Rule 2.27. Counsel who filed the materials in the Leave Application had described themselves as “counsel for the purpose of filing leave to appeal only” but had provided their own address as the address for service. As such, pursuant to Rule 11.15, the Defendants were entitled to serve their response materials on counsel at that address, as Rule 2.27 does not allow parties to bypass the rules on service.

Slatter J.A. noted that Rule 14.5(1)(b) and (h) were the relevant provisions, but there was no appeal as of right from the type of orders listed in that Rule. Permission to appeal will only be granted if the appeal raises a serious question of general importance and has a reasonable chance of success.

The Plaintiffs proposed to raise two issues on Appeal: that there was a denial of procedural fairness when they were denied a further adjournment; and that the Justice who ordered Security for Costs had not discussed or applied the criteria set out in Rule 4.22. Justice Slatter held that the proposed Appeal related to the way the Justice exercised discretion regarding granting an adjournment, and that Rule 4.22 does not directly apply when Judges and Masters are exercising their discretion to grant procedural Orders pursuant to Rule 1.4. Finally, there was no obvious reason to doubt the correctness of the Master’s Decision. Justice Slatter refused to grant the Plaintiffs’ Application for Leave to Appeal.

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